EXECUTION COUNTERPART
EXHIBIT 10.2
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT is entered into as of this 9th day
of May, 2008 (the "Agreement"), by and among Xxxx Xxxxxxxx ("Seller"), Mattmar
Minerals, Inc. (the "Company"), and R&R Biotech Partners, LLC ("Purchaser"), all
collectively referred to as the "Parties".
WHEREAS, Seller owns an aggregate of 10,000,000 shares (the "Seller
Shares") of common stock, par value $0.001 per share, of the Company (the
"Common Stock") representing approximately 77 % of the issued and outstanding
shares of common stock of the Company; and
WHEREAS, Seller is willing to sell 7,866,667 of the Seller Shares (the
"Shares") to Purchaser and to return to the Company for cancellation 2,133,333
of the Seller Shares (the "Retired Shares") so that the Shares shall represent
approximately 59% of the issued and outstanding shares of Common Stock of the
Company immediately after the Closing; and
WHEREAS, the Purchaser desires to purchase from the Seller, and the
Seller desires to sell to the Purchaser, all of the Shares upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the undertakings and commitments
contained herein and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the Parties agree as follows:
ARTICLE 1
SALE OF THE SHARES
Section 1.1 SALE OF THE SHARES. Subject to the terms and conditions set
forth in this Agreement, Seller agrees to sell, transfer and assign to the
Purchaser and the Purchaser agrees to purchase from the Seller, the Shares, in
exchange for an aggregate purchase price (the "Purchase Price") of $138,000.00.
Section 1.2 PURCHASE PRICE.
The Purchase Price shall be paid to the Seller by certified bank check
or by wire transfer at the Closing (as defined below).
Section 1.3 RESTRICTED STATUS OF THE SHARES. Subsequent Dispositions.
Purchaser hereby confirms its understanding that Seller is, or has been in the
past ninety (90) days an "affiliate" of the Company as that term in defined
under Rule 144 promulgated under the Securities Act, and agrees that the Shares
delivered to Purchaser shall bear a restrictive legend indicating that they have
not been registered under the Securities Act and are "restricted securities" as
that term is defined in Rule 144 under the Act. The Purchaser hereby agrees that
it shall not make any subsequent offer, sale, transfer, or pledge of the Shares
unless such disposition is pursuant to registration under the Securities Act of
1933, as amended (the
"Securities Act") and any applicable securities laws of any state or pursuant to
an exemption therefrom.
ARTICLE 2
CLOSING AND DELIVERY
Section 2.1 CLOSING DATE. Upon the terms and subject to the conditions
set forth herein, the consummation of the purchase and sale of the Shares (the
"Closing") shall be held at such date (the "Closing Date") and time as
determined at the mutual discretion of the Seller and the Purchaser; PROVIDED,
HOWEVER, that the Closing shall occur no later than ten (10) business days after
the conditions precedent contained in Article 7 herein have been satisfied
(which the Parties hereto agree shall not be later than May 15, 2008 (unless
extended as provided for herein). The Closing shall take place at the offices of
Purchaser's counsel Xxxxx Xxxxxxx Xxxx & Xxxxxx, LLP, 000 Xxxx Xxxxxx - Xxxxx
0000, Xxx Xxxx, XX 00000, or by the exchange of documents and instruments by
mail, courier, telecopy and wire transfer to the extent mutually acceptable to
the parties hereto.
Section 2.2 DELIVERY AT CLOSING.
At the Closing:
(a) the Seller shall deliver to the Purchaser stock certificates
representing the Shares. The certificates representing the Shares shall be duly
endorsed for transfer to the Purchaser, as applicable, and accompanied by: (i)
if required by the Company's transfer agent, an opinion of counsel reasonably
acceptable to the Company, the Purchaser and the Company's transfer agent; and
(ii) stock powers with medallion signature guarantees or other instruments of
transfer duly executed to the Purchaser; and
(b) the Purchaser shall transfer the aggregate Purchase Price to the
Seller in the form of certified bank check or by wire transfer; and
(c) the Seller shall deliver to the Company for cancellation the
Retired Shares.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
Seller and the Company jointly and severally represent and warrant to
the Purchaser that:
Section 3.1 EXISTENCE AND POWER. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Nevada and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. The Company has heretofore delivered to the Purchaser
true and complete copies of the Articles of Incorporation, as amended, and
Bylaws, each as currently in effect.
Section 3.2 AUTHORIZATION; NO AGREEMENTS. The execution, delivery and
performance by the Seller of this Agreement, the performance of his obligations
hereunder, and the consummation of the transactions contemplated hereby are
within the Seller's powers. This
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Agreement has been duly and validly executed and delivered by the Seller and is
a legal, valid and binding obligation of the Seller, enforceable against him in
accordance with its terms. The execution, delivery and performance by the Seller
of this Agreement does not violate any contractual restriction contained in any
agreement that binds or affects or purports to bind or affect any of the Seller.
Seller is not a party to any agreement, written or oral, creating rights in
respect of any of such Shares in any third party or relating to the voting of
the Shares. Seller is the lawful owner of the Shares, free and clear of all
security interests, liens, encumbrances, equities and other charges. Seller
further represents that he does not beneficially own any options or warrants or
other rights to purchase shares of Common Stock. At the Closing there will be no
outstanding or authorized options, warrants, rights, calls, commitments,
conversion rights, rights of exchange or other agreements of any character,
contingent or otherwise, providing for the purchase, issuance or sale of any of
the Shares, or any arrangements that require or permit any of the Shares to be
voted by or at the discretion of anyone other than the Seller, and there are no
restrictions of any kind on the transfer of any of the Shares other than (a)
restrictions on transfer imposed by the Securities Act and (b) restrictions on
transfer imposed by applicable state securities or "blue sky" laws.
Section 3.3 CAPITALIZATION.
(a) The authorized capital stock of the Company consists of 75,000,000
shares of common stock, with a $0.001 par value per share; there are 13,000,000
shares of common stock issued and outstanding as of the Closing Date, and there
are approximately 23 shareholders of record holding the common stock. There are
no shares of preferred stock authorized, issued or outstanding. All of the
issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessasable. All of the
issued and outstanding shares of capital stock of the Company have been offered,
issued and sold by the Company in compliance with all applicable federal and
state securities laws, either pursuant to an effective registration statement
filed with the Securities and Exchange Commission ("SEC"), or an available
exemption from registration pursuant to federal and state securities laws. No
securities of the Company are entitled to preemptive or similar rights, and no
Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated hereby.
Except as a result of the purchase and sale of the Shares, there are no
outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities, rights or
obligations, convertible into or exchangeable for, or giving any Person any
right to subscribe for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company is or may
become bound to issue additional shares of Common Stock, or securities or rights
convertible or exchangeable into shares of Common Stock. The issuance and sale
of the Shares will not obligate the Company to issue shares of Common Stock or
other securities to any Person (other than the Purchaser) and shall not result
in a right of any holder of Company securities to adjust the exercise,
conversion, exchange or reset price under such securities.
(b) Other than as set forth in this Agreement, there are no outstanding
obligations, contingent or otherwise, of the Company to redeem, purchase or
otherwise acquire any capital stock or other securities of the Company.
(c) There are no shareholder agreements, voting trusts or other
agreements or understandings to which Seller is a party or by which the Seller
is bound relating to the voting of any shares of the capital stock of the
Company.
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(d) The Shares shall be duly authorized for issuance, when delivered in
accordance with the terms of this Agreement, and shall be validly issued, fully
paid and nonassessable and the transfer of said Shares shall not be subject to
any preemptive or other similar right.
(e) There is no provision in Seller's organizational documents or
records, and there are no shareholder agreements or other agreements or
understandings to which Seller is a party or by which it is bound that prohibit
a reverse split of the shares of the capital stock of Seller.
Section 3.4 SUBSIDIARIES.
The Company has no subsidiaries and does not own or control, directly
or indirectly, any shares of capital stock of any corporation or any interest in
a partnership, limited liability company, joint venture, or other non-corporate
business enterprise.
Section 3.5 FINANCIAL STATEMENTS.
(a) SEC REPORTS; FINANCIAL STATEMENTS. The Company has filed with the
SEC all reports required to be filed by a filer pursuant to Section 15(d) of the
Securities Exchange Act of 1934 as amended (the "Exchange Act") under the
Securities Act and the Exchange Act, including pursuant to Section 13(a) or
15(d) thereof, since August 7, 2006, including the annual report on Form 10-KSB
for the fiscal year ended May 31, 2007 and the quarterly reports on Form 10-QSB
for the periods ended August 31, 2007, November 30, 2007 and February 28, 2008
(the foregoing materials being collectively referred to herein as the "SEC
Reports") on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration of any such
extension. . The Seller has identified and made available to the Purchaser a
copy of all SEC Reports filed within the 10 days preceding the date of this
Agreement. As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act and the Exchange
Act and the rules and regulations of the SEC promulgated thereunder, none of the
SEC Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto as in
effect at the time of filing. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved ("GAAP"), except as may be otherwise specified
in such financial statements or the notes thereto, and fairly present in all
material respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(b) Except as set forth in the SEC Reports, (i) Seller has not been
engaged in any business activity; (ii) there has been no event, occurrence or
development that has had or that could result in a Material Adverse Effect;
(iii) the Company has not incurred any liabilities (contingent or otherwise) or
amended of any material term of any outstanding security; (iv) the Company has
not altered its method of accounting or the identity of its auditors; (v) the
Company has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock; (vi) the Company has not
issued any equity securities to any officer, director
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or Affiliate of the Company; (vii) the Company has not made any loan, advance or
capital contributions to or investment in any Person; (viii) the Company has
not, except for the sale of the Subsidiary, entered into any transaction or
commitment made, or any contract or agreement entered into, relating to its
business or any of its assets (including the acquisition or disposition of, or
creation of a lien on, any assets) or any relinquishment by the Company of any
contract or other right; (ix) the Company has not granted any severance or
termination pay to any current or former director, officer or employee thereof,
or increased the benefits payable under any existing severance or termination
pay policies or employment agreements or entered into any employment, deferred
compensation or other similar agreement (or any amendment to any such existing
agreement) with any current or former director, officer or employee of the
Company; (x) the Company has not established, adopted or amended (except as
required by applicable law) any collective bargaining, bonus, profit sharing,
thrift, pension, retirement, deferred compensation, compensation, stock option,
restricted stock or other benefit plan or arrangement covering any current or
former director, officer or employee thereof; (xi) the Company has not increased
the compensation, bonus or other benefits payable or otherwise made available to
any current or former director, officer or employee of the Company; (xii) the
Company has not made any tax election or any settlement or compromise of any tax
liability, in either case that is material to or entered into any transaction by
the Company not in the ordinary course of business.
Section 3.6 NO LIABILITIES OR DEBTS. The Company is not a guarantor of
any indebtedness of any other person, firm or corporation, and, except as
disclosed on the Financial Statements, there are no liabilities or debts of the
Company of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, and there is no existing condition,
situation or set of circumstances which could reasonably be expected to result
in such a liability or debt.
Section 3.7 LITIGATION. There is no action, suit, investigation, audit
or proceeding pending against, or to the best knowledge of the Company
threatened against or affecting, the Company or any of its assets or properties
before any court or arbitrator or any governmental body, agency or official. The
Company is not subject to any outstanding judgment, order or decree. Neither the
Company, nor any officer, key employee or 5% stockholder of the Company in his,
her or its capacity as such, is in default with respect to any order, writ,
injunction, decree, ruling or decision of any court, commission, board or any
other government agency. The SEC has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by the Company
under the Exchange Act or the Securities Act.
Section 3.8 TAXES. The Company has (i) duly filed with the appropriate
taxing authorities all tax returns required to be filed by or with respect to
its business, or are properly on extension and all such duly filed tax returns
are true, correct and complete in all material respects and (ii) paid in full or
made adequate provisions for on its balance sheet (in accordance with GAAP) all
Taxes shown to be due on such tax returns. There are no liens for taxes upon the
assets of the Company, except for statutory liens for current taxes not yet due
and payable or which may thereafter be paid without penalty or are being
contested in good faith. The Company has not received any notice of audit, is
not undergoing any audit of its tax returns, or has received any notice of
deficiency or assessment from any taxing authority with respect to liability for
taxes which has not been fully paid or finally settled. There have been no
waivers of statutes of limitations by the Company with respect to any tax
returns. The Company has not filed a request with the Internal Revenue Service
for changes in accounting methods within the last three years which change would
affect the accounting for tax purposes, directly or indirectly,
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of its business. The Company has not executed an extension or waiver of any
statute of limitations on the assessment or collection of any taxes due
(excluding such statutes that relate to years currently under examination by the
Internal Revenue Service or other applicable taxing authorities) that is
currently in effect.
Section 3.9 INTERNAL ACCOUNTING CONTROLS; XXXXXXXX-XXXXX ACT OF 2002.
To the best of its knowledge, the Company is in compliance with the requirements
of the Xxxxxxxx-Xxxxx Act of 2002 applicable to it as of the date hereof. The
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management's general or specific authorization, and (iv)
the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and
designed such disclosures controls and procedures to ensure that material
information relating to the Company, is made known to the certifying officers by
others within those entities, particularly during the period in which the
Company's Form 10-KSB or 10-QSB, as the case may be, is being prepared. The
Company's certifying officers have evaluated the effectiveness of the Company's
controls and procedures as of the date of its most recently filed periodic
report (such date, the "Evaluation Date"). The Company presented in its most
recently filed periodic report the conclusions of the certifying officers about
the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have
been no significant changes in the Company's internal controls (as such term is
defined in Item 307(b) of Regulation S-K under the Exchange Act) or, to the
Company's knowledge, in other factors that could significantly affect the
Company's internal controls. The Company's auditors, at all relevant times, have
been duly registered in good standing with the Public Company Accounting
Oversight Board.
Section 3.10 NO BROKERS. No brokerage or finder's fees or commissions
are or will be payable by the Seller to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement. The Company has
not taken any action that would cause any Purchaser to be liable for any such
fees or commissions. The Company and Seller agree that the Purchaser shall have
no obligation with respect to any fees or with respect to any claims made by or
on behalf of any Person for fees of the type contemplated by this Section and
Seller shall indemnify and hold Purchaser harmless from any fees, costs or
liabilities of any kind incurred by Purchaser in connection therewith.
Section 3.11 DISCLOSURE. The Company and Seller confirm that neither
they, nor any other Person acting on their behalf has provided any of the
Purchaser or its agents or counsel with any information that constitutes or
might constitute material, nonpublic information concerning the Company. The
Company and Seller understand and confirm that the Purchaser will rely on the
foregoing representations in effecting transactions in securities of the
Company. All disclosure provided to the Purchaser regarding the Company, its
business and the transactions contemplated hereby furnished by or on behalf of
the Company with respect to the representations and warranties made herein are
true and correct with respect to such representations and warranties and do not
contain any untrue statement of a material fact or omit
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to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The Company and Seller acknowledge and agree that the Purchaser has
not made, nor is the Purchaser making, any representations or warranties with
respect to the transactions contemplated hereby other than those specifically
set forth herein.
Section 3.12 NO CONFLICTS. The execution, delivery and performance of
this Agreement and the transactions contemplated hereby do not and will not: (i)
conflict with or violate any provision of the Company's Certificate or Articles
of Incorporation, Bylaws or other organizational or charter documents; or (ii)
conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding to
which the Company is a party or by which any property or asset of the Company is
bound or affected; or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company is subject (including federal and
state securities laws and regulations), or by which any property or asset of the
Company is bound or affected.
Section 3.13 FILINGS, CONSENTS AND APPROVALS. Neither the Seller nor
the Company are required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance of this Agreement.
Section 3.14 NO DISAGREEMENTS WITH ACCOUNTANTS AND LAWYERS. There are
no disagreements of any kind presently existing, or reasonably anticipated by
the Seller to arise, between the accountants, and lawyers formerly or presently
employed by the Company, and the Company is current with respect to any fees
owed to its accountants and lawyers.
Section 3.15 COMPLIANCE. The Company: (i) is not in default under or in
violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company
under), nor has the Company received notice of a claim that it is in default
under or that it is in violation of, any indenture, loan or credit agreement or
any other agreement or instrument to which it is a party or by which it or any
of its properties is bound (whether or not such default or violation has been
waived); (ii) is not in violation of any order of any court, arbitrator or
governmental body; and (iii) is not and has not been in violation of any
statute, rule or regulation of any governmental authority.
Section 3.16 TRANSACTIONS WITH AFFILIATES AND EMPLOYEES. Except as
required to be set forth in the SEC Reports, none of the officers or directors
of the Company and, to the knowledge of the Seller, none of the Affiliates or
employees of the Company is presently a party to any transaction with the
Company (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
Section 3.17 ASSETS. Except as set forth in the SEC Reports, the
Company has no
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assets, including, without limitation, goodwill, assets, real property, tangible
personal property, intangible personal property, rights and benefits under
contracts and cash, as to which there will be no distribution prior to the
Closing Date. All Company leases for real or personal property are in good
standing, valid and effective in accordance with their respective terms, and
there is not under any of such leases, any existing material default or event of
default (or event which with notice or lapse of time, or both, would constitute
a material default).
Section 3.18 INVESTMENT COMPANY/INVESTMENT ADVISOR. The business of the
Company does not require it to be registered as an investment company or
investment advisor, as such terms are defined under the Investment Company Act
and the Investment Advisors Act of 1940.
Section 3.19 INFORMED DECISION. Seller is aware of the Company's
business affairs and financial condition and has reached an informed and
knowledgeable decision to sell the Shares.
Section 3.20 CONSUMMATION OF A MERGER TRANSACTION. Seller acknowledges
that it is the intention of the Purchaser, upon completion of the transactions
contemplated hereby, to cause at some future date the Company to consummate a
merger or business combination with one or more as yet unidentified private
operating companies (collectively the "Merger") subsequent to the Closing Date.
Seller further acknowledges that upon consummation of a Merger, it is probable
that each Share will increase in value, possibly substantially.
Section 3.21 LISTING ON THE OTCBB. The Common Stock is approved for
listing and quoted on the Over-The-Counter Bulletin Board (the "OTCBB") and the
Company has and continues to satisfy all of the requirements of the OTCBB for
such listing and for the trading of its Common Stock thereunder. Seller and the
Company have not been informed, nor have knowledge, that FINRA or any other
regulatory agency will take action to cease the Company's Common Stock from
being quoted and traded on the OTCBB.
Section 3.22 SOLVENCY; INDEBTEDNESS. Assuming satisfaction of the terms
and conditions set forth herein, based on the financial condition of the Company
as of the Closing Date, the fair saleable value of the Company's assets exceeds
the amount that will be required to be paid on or in respect of the Company's
existing debts and other liabilities (including known contingent liabilities) as
they mature. The Company does not intend to incur debts beyond its ability to
pay such debts as they mature. The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for reorganization or
liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one (1) year from the Closing Date. The SEC Reports set forth as of the
dates thereof all outstanding secured and unsecured Indebtedness of the Company,
or for which the Company has commitments. The Company is not in default with
respect to any Indebtedness. At the Closing, there will be no outstanding
liabilities, obligations or indebtedness of the Company whatsoever.
ARTICLE 4
REPRESENTATIONS OF THE PURCHASER
Purchaser represents and warrants to the Seller, as follows:
Section 4.1 EXECUTION AND DELIVERY. The execution, delivery and
performance by the Purchaser of this Agreement has been duly authorized and is
within Purchaser's power and does
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not (i) violate any contractual restriction contained in any agreement which
binds or affects or purports to bind or affect the Purchaser; (ii) require any
filing with, or permit, authorization, consent of approval of, any Governmental
entity, except for the filings required to be filed with the SEC pursuant to the
execution of this Agreement.
Section 4.2 BINDING EFFECT. This Agreement, when executed and delivered
by the Purchaser shall be irrevocable and will constitute the legal, valid and
binding obligations of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium and other laws of general application affecting
enforcement of creditors' rights generally or general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 4.3 INVESTMENT PURPOSE. The Purchaser hereby represents that it
is purchasing the Shares for its own account, with the intention of holding the
Shares, with no present intention of dividing or allowing others to participate
in this investment or of reselling or otherwise participating, directly or
indirectly, in a distribution of the Shares.
Section 4.4 INVESTMENT REPRESENTATION. The Purchaser represents that it
has adequate means of providing for its current needs and has no need for
liquidity in this investment in the Shares. Purchaser represents that it is an
"accredited investor" as defined in Rule 501(a) of Regulation D promulgated
under the Securities Act. Purchaser has no reason to anticipate any material
change in its financial condition for the foreseeable future. Purchaser is
financially able to bear the economic risk of this investment, including the
ability to hold the Shares indefinitely or to afford a complete loss of his/its
investment in the Shares.
Section 4.5 INVESTMENT EXPERIENCE. Purchaser has such knowledge and
experience in financial, tax and business matters as to be capable of evaluating
the merits and risks of the purchase of the Shares, and of making an informed
investment decision with respect thereto.
Section 4.6 OPPORTUNITY TO INQUIRE AND ASK QUESTIONS. Purchaser
confirms that, in making its decision to purchase the Shares it has relied upon
independent investigations made by Purchaser or by its representatives,
including its own professional tax and other advisers and that Purchaser have
had a full and fair opportunity to examine all documents and to make inquiries
about the terms and conditions of this Agreement, to discuss the same and all
related matters with its own independent counsel and its own accountants and tax
advisers. Purchaser has been given the opportunity to ask questions of, and
receive answers from Seller concerning the terms and conditions of this
Agreement and to obtain such additional written information about the Company to
the extent Seller possesses such information or can acquire it without
unreasonable effort or expense.
ARTICLE 5
COVENANTS OF THE COMPANY
Section 5.1 PUBLIC COMPANY STATUS. The Company shall make any and all
required filings under the Exchange Act so that it remains a reporting company
under the Exchange Act and its Common Stock continues to be a publicly traded
security. The Company shall, to the best of its ability, cause its Common Stock
to continue to be approved for listing on the OTCBB.
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Section 5.2 FINANCIAL CONDITION AS OF THE CLOSING DATE. As of the
Closing Date, the Company shall not be a guarantor of any indebtedness of any
other person, firm or corporation, and, there shall be no liabilities or debts
of the Company of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, and there is no existing condition,
situation or set of circumstances which could reasonably be expected to result
in such a liability or debt.
Section 5.3 PIGGY-BACK REGISTRATION. If at any time following the
Closing Date, the Company shall determine to prepare and file with the SEC a
registration statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities (a
"Registration Statement"), other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act), then the Company shall send to Purchaser
a written notice of such determination and, if within fifteen (15) days after
the date of such notice, Purchaser shall so request in writing, the Seller shall
include in such Registration Statement all or any part of such Shares. If the
Registration Statement is being filed pursuant to a written agreement obligating
the Company to file same (a "Registration Agreement"), Purchaser requesting to
be included in such Registration Statement shall be entitled to receive all
notices and documents sent by the Company to the parties whose securities are
being registered pursuant to such Registration Agreement.
Section 5.4 CORPORATE BOOKS AND RECORDS. At least two business days prior to the
Closing Date, the Company shall deliver to counsel for the Purchaser the
original minute books and corporate records of the Seller, which books and
records shall be true, complete and correct.
ARTICLE 6
COVENANTS OF THE PARTIES
The Parties hereto agree that:
Section 6.1 PUBLIC ANNOUNCEMENTS. Except as required by applicable law,
Seller, the Company and the Purchaser shall consult with each other before
issuing any press release or making any public statement with respect to this
Agreement or the transactions contemplated hereby and, except as may be required
by applicable law, will not issue any such press release or make any such public
statement prior to such consultation and without the consent of the other
Parties.
Section 6.2 NOTICES OF CERTAIN EVENTS. In addition to any other notice
required to be given by the terms of this Agreement, each of the Parties shall
promptly notify the other party hereto of:
(a) any notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with any of the
transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions contemplated
by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings commenced
or, to its knowledge threatened against, relating to or involving or otherwise
affecting such party that, if
10
pending on the date of this Agreement, would have been required to have been
disclosed pursuant to Section 3 or Section 4 (as the case may be) or that relate
to the consummation of the transactions contemplated by this Agreement.
Section 6.3 ACCESS TO INFORMATION. Following the date of this
Agreement, until consummation of all transactions contemplated hereby, the
Seller and the Company shall give to the Purchaser, its counsel, financial
advisers, auditors and other authorized representatives reasonable access to the
Company's offices, properties, books and records, financial and other data and
information as the Purchaser and its respective representatives may reasonably
request for the purpose of performing in-depth due diligence. In this regard,
Purchaser shall cooperate with Seller and the Company so as to minimize the
impact and disturbance of such inquiries and any sort of due diligence on the
business of the Company. Any sort of information which is disclosed pursuant to
this provision shall be kept by Purchaser and/or any of its representatives in
strict confidence and shall not be disclosed to except to persons participating
in this transaction on their behalf, including attorneys, accountants and other
advisors, except that nothing herein shall prevent disclosure or use of any
information as may be required by applicable law.
Section 6.4 COMPANY'S BUSINESS. The Company will not, without the prior
written consent of Purchaser; (i) make any material change in the type or nature
of its business, or in the nature of its operations; (ii) create or suffer to
exist any debt, other than that currently shown in the SEC Reports; (iii) issue
any capital stock; or (iv) enter into any new agreements of any kind (other than
those contemplated by this Agreement) or undertake any new obligations or
liabilities.
Section 6.5 CONSENTS OF THIRD PARTIES. Each of the Parties will give
any notices (and will cause its subsidiary to give any notices) to third
parties, and will use its reasonable best efforts to obtain (and will cause its
subsidiary to use its reasonable best efforts to obtain) any third party
consents, that the other Parties reasonably may request in connection with this
Agreement. Each of the Parties will give any notices to, make any filings with,
and use its reasonable best efforts to obtain any authorizations, consents, and
approvals of governments and governmental agencies in connection with the
matters in this Agreement.
Section 6.6 REASONABLE EFFORTS. Each of the Parties will use its
reasonable best efforts to take all actions and to do all things necessary in
order to consummate and make effective the transactions contemplated by this
Agreement.
ARTICLE 7
CONDITIONS PRECEDENT
Section 7.1 CONDITIONS OF OBLIGATIONS OF THE PURCHASER. The obligations
of the Purchaser are subject to the satisfaction of the following conditions,
any or all of which may be waived in whole or in part by Purchaser:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Seller and the Company set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date as though made on and as of the Closing Date.
11
(b) COMPLIANCE CERTIFICATE. The Chief Executive Officer of the
Company shall deliver to the Purchaser at the Closing a certificate certifying:
(i) that there has been no material adverse change in the business, affairs,
prospects, operations, properties, assets or conditions of the company since the
date of this Agreement, except as contemplated by this Agreement; (ii) that
attached thereto is a true and complete copy of the Company's Articles of
Incorporation, as amended, as in effect at the Closing; (iii) that attached
thereto is a true and complete copy of its Bylaws as in effect at the Closing;
and (iv) each of the representations and warranties of the Seller and the
Company set forth in this Agreement are true and correct in all material
respects as of the Closing Date as though made on and as of the Closing Date.
(c) GOOD STANDING CERTIFICATE. The Company shall have furnished the
Purchaser with good standing and existence certificates for the Company from its
jurisdiction of formation and such other jurisdictions as the Purchaser
reasonably requests.
(d) CERTIFIED LIST OF RECORD HOLDERS. The Purchaser shall have received
a current certified list from the Company's transfer agent of the holders of
record of the Company's Common Stock.
(e) BOARD OF DIRECTORS RESOLUTIONS. The Purchaser shall have received
executed resolutions of the Board of Directors of the Company approving the
transactions contemplated herein including the resignation of all current
directors of the Company, if so requested.
(f) PERFORMANCE. The Seller and the Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Closing.
(g) RESIGNATION OF OFFICERS AND DIRECTORS. Xxxx Xxxxxxxx shall have
provided to Purchaser his written resignation from his positions and offices
with the Company, such resignations to be effective simultaneously with the
Closing. Purchaser's designees for such positions shall have been duly
appointed, such appointments to be effective simultaneously with the Closing.
(h) PURCHASE OF OTHER SHARES. On or before the Closing Date, the
Company shall sell to certain other Purchasers, an aggregate of 2,466,666 shares
of the Company's common stock.
(i) NO INJUNCTION. There shall not be in effect, at the Closing Date,
any injunction or other binding order of any court or other tribunal having
jurisdiction over Seller that prohibits the sale of the Shares to Purchaser.
(j) LEGAL OPINION. The Company shall deliver an opinion of counsel, in
the form attached hereto as Exhibit A, that the Shares, upon delivery to the
Purchaser, will be duly authorized, validly issued, fully-paid and
non-assessable,.
(k) TAX RETURNS. The Company shall have filed all required tax returns
with federal and state authorities for all periods up to December 31, 2007.
(l) DELIVERY OF SHARES FOR CANCELLATION. Seller shall have delivered to
the Company for cancellation the Retired Shares.
12
(m) FINANCIAL RECORDS. The Company shall have delivered to the
Purchaser complete copies of all the Company's financial records necessary to
complete audits for the Company's fiscal year 2007-2008.
Section 7.2 CONDITIONS OF OBLIGATIONS OF THE SELLER. The obligations of
the Seller to effect the sale of the Shares are subject to the following
conditions, any or all of which may be waived in whole or in part by the Seller:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Purchaser set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date.
(b) COMPLIANCE CERTIFICATE. The authorized officer of the Purchaser
shall each deliver to the Seller at the Closing a certificate certifying each of
the representations and warranties of the Purchaser set forth in this Agreement
are true and correct in all material respects as of the Closing Date as though
made on and as of the Closing Date.
(c) PERFORMANCE. The Purchaser shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it or him on or before the Closing.
(d) NO LEGAL OBSTACLE. There shall not be any judgment, order, decree,
stipulation, injunction, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement.
ARTICLE 8
TERMINATION
Section 8.1 TERMINATION. This Agreement may be terminated and the
purchase and sale of the Shares may be abandoned at any time prior to the
Closing:
(a) by mutual written consent of the parties hereto;
(b) by either the Seller or the Purchaser if the Closing shall not have
occurred on or before May 15, 2008 (unless the failure to consummate the
transactions by such date shall be due to the action or failure to act of the
party seeking to terminate this Agreement or regulatory delays);
(c) by the Purchaser if (i) Seller shall have failed to comply in any
material respect with any of the covenants, conditions, terms or agreements
contained in this Agreement to be complied with or performed by Seller; which
breach is not cured within ten (10) days if capable of cure; or (ii) any
representations and warranties of Seller or the Company contained in this
Agreement shall not have been true when made or on and as of the Closing Date as
if made on and as of Closing Date (except to the extent it relates to a
particular date); or (iii) Purchaser is not satisfied with its due diligence
review of the Seller and the Company; or
(d) by Seller if (i) the Purchaser shall have failed to timely comply
in any material respect with any of the covenants, conditions, terms or
agreements contained in this Agreement
13
to be complied with or performed by it, which breach is not cured within ten
(10) days if capable of cure; or (ii) any representations and warranties of the
Purchaser contained in this Agreement shall not have been true when made or on
and as of the Closing Date.
Section 8.2 EFFECT OF TERMINATION. In the event of the termination of
this Agreement pursuant to this Article 8, all further obligations of the
Parties under this Agreement shall forthwith be terminated without any further
liability of any party to the other parties; provided, however, that nothing
contained in this Section 8.2 shall relieve any party from liability for any
breach of this Agreement. Upon termination of this Agreement for any reason,
Purchaser shall promptly cause to be returned to the Company all documents and
information obtained in connection with this Agreement and the transactions
contemplated by this Agreement and all documents and information obtained in
connection with Purchaser's investigation of the Company's business, operations
and legal affairs, including any copies made by Purchaser of any such documents
or information.
Section 8.3 INDEMNIFICATION
(a) The Seller shall indemnify and hold the Purchaser harmless, and
shall reimburse Purchaser for, any loss, liability, claim, damage, expense
(including, but not limited to, reasonable cost of investigation and defense and
reasonable attorneys' fees) or diminution of value (collectively, "Damages")
arising from or in connection with (a) any inaccuracy in any of the
representations and warranties of the Seller pursuant to this Agreement or in
any certificate delivered by the Seller pursuant to this Agreement, or any
actions, omissions or states of facts inconsistent with any such representation
or warranty, or (b) any failure by the Seller to perform or comply with any
provision of this Agreement.
(b) Purchaser shall indemnify and hold the Seller harmless, and shall
reimburse Seller for any Damages arising from (a) any material inaccuracy in any
of the representations and warranties of Purchaser in this Agreement or in any
certificate delivered by the Purchaser pursuant to this Agreement, or any
actions, omissions or states of facts inconsistent with any such representation
or warranty, or (b) any failure by the Purchaser to perform or comply with any
provision of this Agreement.
Section 8.4 PROCEDURE FOR INDEMNIFICATION. Promptly after receipt by an
indemnified party of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such section, give notice to the indemnifying party of the
commencement thereof, but the failure so to notify the indemnifying party shall
not relieve it of any liability that it may have to any indemnified party except
to the extent the defense of such action by the indemnifying party is prejudiced
thereby. In case any such action shall be brought against an indemnified party
and it shall give notice to the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, to assume the defense thereof with counsel reasonable
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such section for any fees of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation, If an
indemnifying party assume the defense of such an action, (a) no compromise or
settlement thereof may be effected by the indemnifying party without the
indemnified party's consent (which shall not be
14
unreasonable withheld) unless (i) there is no finding or admission of any
violation of law or any violation of the rights of any person which is not fully
remedied by the payment referred to in clause (ii) and no adverse effect on any
other claims that may be made against the indemnified party and (ii) the sole
relief provided is monetary damages that are paid in full by the indemnifying
party, (b) the indemnifying party shall have no liability with respect to any
compromise or settlement thereof effected without its consent (which shall not
be reasonably withheld) and (c) the indemnified party will reasonable cooperate
with the indemnifying party in the defense of such action. If notice is given to
an indemnifying party of the commencement of any action and it does not, within
15 days after the indemnified party's notice is given, give notice to the
indemnified party of its election to assume the defense thereof, the
indemnifying party shall be bound by any determination made in such action or
any compromise or settlement thereof effected by the indemnified party.
Notwithstanding the foregoing, if an indemnified party determined in good faith
that there is a reasonable probability that an action may materially and
adversely affect it or its affiliated other than as a result of monetary
damages, such indemnified party may, by notice to the indemnifying party, assume
the exclusive right to defend, compromise or settle such action, but the
indemnifying party shall not be bound by any determination of an action so
defended or any compromise or settlement thereof effected without its consent
(which shall not be unreasonably withheld).
ARTICLE 9
MISCELLANEOUS
Section 9.1 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing and either delivered personally,
telecopied or sent by certified or registered mail, postage prepaid,
IF TO SELLER:
Xxxx Xxxxxxxx
0000 X. 00xx Xxx
Xxxxxxxxx, XX
Xxxxxx X0X 0X0
With a copy to:
Xxxxxxx X. XxxXxxxxx
Xxxxxxxxx Xxxxxx
0000-000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx
Fax: 000-000-0000
IF TO PURCHASER:
R&R Biotech Partners, LLC
c/x Xxxxxx & Xxxxxxx Capital Group, Inc.
0000 Xxxxxx xx Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, CFO
Fax: (000) 000-0000
15
With a copy to:
Xxxxx Xxxxxxx Xxxx & Xxxxxx, LLP
000 Xxxx Xxxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
Fax: (000) 000-0000
IF TO THE COMPANY:
Mattmar Minerals, Inc.
#000-000 Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx, XX X0X 0X0
With a copy to:
Xxxxxxx X. XxxXxxxxx
Xxxxxxxxx Xxxxxx
0000-000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Xxxxxx
Fax: 000-000-0000
or such other address or fax number as such party may hereafter specify for the
purpose by notice to the other Parties hereto. All such notices, requests and
other communications shall be deemed received on the date delivered personally
or by overnight delivery service or telecopied or, if mailed, five (5) business
days after the date of mailing if received prior to 5 p.m. in the place of
receipt and such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
Section 9.2 AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement with respect to transactions
contemplated hereby may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by the Seller
and Purchaser; or in the case of a waiver, by the party against whom the waiver
is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 9.3 FEES AND EXPENSES. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
16
Section 9.4 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that Purchaser shall have the right
to assign this Agreement to an affiliate or assignee of Purchaser reasonably
acceptable to Seller and no other party hereto may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of each other party hereto, but any such transfer or assignment will not
relieve the appropriate party of its obligations hereunder.
Section 9.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
Section 9.6 JURISDICTION. Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby may be brought in
any federal or state court located in New York, New York, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 9.1 shall be deemed
effective service of process on such party. Each party hereto (including its
affiliates, agents, officers, directors and employees) hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
Section 9.7 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
Section 9.8 ENTIRE AGREEMENT. This Agreement and the Exhibits and
Schedules hereto constitute the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter hereof.
Section 9.9 CAPTIONS. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
Section 9.10 SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
17
invalidated so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
parties. Upon such a determination, the parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
Section 9.11 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
Section 9.12 DEFINITION AND USAGE.
For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person,
directly or indirectly controlling, controlled by, or under common control with
such Person.
"Indebtedness" shall mean (a) any liabilities for borrowed money or
amounts owed, (b) all guaranties, endorsements and other contingent obligations,
whether or not the same are or should be reflected in the Seller's balance sheet
or the notes thereto, except guaranties by endorsement of negotiable instruments
for deposit or collection in the ordinary course of business, and (c) the
present value of any lease payments under leases required to be capitalized in
accordance with GAAP.
"Material Adverse Effect" means any effect or change that is or would
be materially adverse to the business, operations, assets, prospects, condition
(financial or otherwise) or results of operations of the Company and any of its
subsidiaries, taken as a whole.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Taxes" means any and all federal, state, local, foreign or other taxes
of any kind (together with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any taxing
authority, including, without limitation, taxes or other charges on or with
respect to income, franchises, windfall or other profits, gross receipts, sales,
use, capital stock, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth, and taxes or other charges in the
nature of excise, withholding, ad valorem or value added.
Section 9.13 EXPIRATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Except for the covenants set forth in Sections 5 and 6 above, all covenants,
representations and warranties set forth in this Agreement shall terminate and
expire, and shall cease to be of any force or effect two (2) years after the
Closing Date, and all liability of the parties hereto with respect to such
covenants shall thereupon be extinguished.
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18
IN WITNESS WHEREOF, each of the following individuals has caused this
Agreement to be signed, and each party that is not an individual has caused this
Agreement to be duly executed under seal by its respective authorized officers,
all as of the day and year first above written.
SELLER:
/s/ Xxxx Xxxxxxxx
------------------------------
XXXX XXXXXXXX
THE COMPANY:
MATTMAR MINERALS, INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: President and Sole Director
PURCHASER:
R&R BIOTECH PARTNERS, LLC
By /s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
19
EXHIBIT A
Form of Opinion
20
